USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
ORDER REGARDING MOTION TO STRIKE VICTIM IMPACT EVIDENCE
Before the Court at Docket 760 is Defendant John Pearl Smith, II’s sealed
Renewed Motion to Strike Victim Impact Evidence Under the Eighth and
Fourteenth Amendments. The government filed a sealed opposition at Docket
802. Mr. Smith filed a sealed reply at Docket 833.
The Court has also reviewed the Government’s Supplemental Informational
Outline at Docket 690. The government indicates that the Informational Outline
includes victim-impact statements by family members and friends of the two
victims; at the same time the government acknowledges that certain statements,
particularly regarding the nature of the crimes and regarding Mr. Smith, would not
be admissible. Moreover, the Supplemental Informational Outline does not contain
sufficient information as to the nature of each person’s relationship to either Mr.
Gross or Ms. Denardi. Accordingly, instead of ruling on specific proposed victim-
impact testimony, the Court addresses general principles regarding victim-impact
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information so that the parties can anticipate the Court’s evidentiary rulings on this
information in the event this case proceeds to a penalty phase.
I. General legal standards
The Eighth Amendment does not preclude victim-impact information being
presented to the jury during the penalty phase of a capital trial.1 The Supreme
Court has allowed the government to offer “‘a quick glimpse of the life’ which a
defendant ‘chose to extinguish.’”2 Victim impact information “is generally
admissible if it is not ‘so unduly prejudicial that it renders the trial fundamentally
unfair,’ in violation of due process.”3
The Federal Death Penalty Act (FDPA) also allows for victim-impact
information:
The factors for which notice is provided under this subsection may
include factors concerning the effect of the offense on the victim and
the victim’s family, and may include oral testimony, a victim impact
statement that identifies the victim of the offense and the extent and
scope of the injury and loss suffered by the victim and the victim’s
family, and any other relevant information.4
1 Payne v. Tennessee, 501 U.S. 808, 827 (1991).
2 Id. at 822 (quoting Mills v. Maryland, 486 U.S. 367, 397 (1988)).
3 United States v. Mikhel, 889 F.3d 1003, 1052 (9th Cir. 2018) (quoting Payne, 501 U.S. at 825).
4 18 U.S.C. § 3593(a).
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The FDPA limits victim-impact information by requiring that it be relevant and by
requiring that its probative value not be “outweighed by the danger of creating
unfair prejudice, confusing the issues, or misleading the jury.”5
Thus, while victim-impact information is generally admissible, “there are two
checks on potentially unfairly prejudicial victim impact evidence.”6 One is “the
defendant's right to due process [protected] by viewing the proffered evidence in
the context of all the other evidence in the case and deciding if its admission would
contribute to or detract from a trial that is fundamentally fair and allows jurors to
base their decisions on reason and reliable evidence rather than passion.”7
The other is the FDPA’s requirement that the probative value of sentencing-phase
information not be outweighed by the danger of creating unfair prejudice, confusing
the issues, or misleading the jury.8
As other federal courts have noted, a “district court has considerable
discretion in controlling the presentation of the information to the jury in both
5 18 U.S.C. § 3593(a), (c).
6 United States v. Sampson, 335 F. Supp. 2d 166, 187 (D. Mass. 2004).
7 Id. (citing Payne, 501 U.S. at 836 (Souter, J., concurring)). See also United States v. McVeigh,
944 F. Supp. 1478, 1491 (D. Colo. 1996) (holding allowable scope of victim impact information
“is a matter for the court’s discretion and must be determined with consideration for the
constitutional limitation that the jury must not be influenced by passion or prejudice”).
8 Sampson, 335 F. Supp. 2d at 187.
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content and form”9 and “[e]xercising this authority is essential in a capital case.”10
Although appropriate victim-impact information is allowed, it “is the most
problematical of all of the aggravating factors and may present the greatest
difficulty in determining the nature and scope of the ‘information’ to be
considered.”11 Thus, “applying [the victim-impact] rules requires a judge,
inevitably, to engage in line-drawing.”12
II. The parties’ agreements
The parties agree that victim-impact witnesses “may not characterize or give
their opinions about the crime, may not characterize or give opinions about the
defendant, and may not express an opinion on the appropriate sentence.”13 The
Court has reviewed the relevant caselaw and agrees that it would violate the Eighth
Amendment for a victim-impact witness to so testify.14 The United States shall
direct its witnesses to follow appropriate legal standards.
9 United States v. George, Case No. CR 17-201, 2020 WL 4584200, at *10 (E.D. La. Aug. 10,
2020) (internal quotations omitted).
10 Sampson, 335 F. Supp. 2d at 186.
11 United States v. McVeigh, 944 F. Supp. 1478, 1491 (D. Colo. 1996).
12 United States v. Savage, 970 F.3d 217, 300 (3d Cir. 2020).
13 Docket 802 at 2. See also Docket 760 at 5–6.
14 Booth v. Maryland, 482 U.S. 496, 508 (1987), overruled on other grounds by Payne v.
Tennessee, 501 U.S. 808 (1991); Payne, 501 U.S. at 835 n.1 (Souter, J., concurring) (“This
case presents no challenge to the Court’s holding in Booth v. Maryland that a sentencing
authority should not receive a third category of information concerning a victim’s family
members’ characterization of and opinions about the crime, the defendant, and the appropriate
sentence.”).
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The parties also agree that certain phrases should not be superimposed on
any allowed photographs of the two victims in this case.15 The Court has reviewed
the two phrases and finds that they have no probative value and carry a risk of
unfair prejudice and thus are excluded pursuant to 18 U.S.C. § 3593(c). The
government may label each photograph with the year in which it was taken.
III. The parties’ disagreements
The parties disagree about the following: (1) who may testify as a victim-
impact witness (in other words, is the government limited to presenting only family
members of the victims?); (2) whether witnesses may testify about the impact of
the victim’s death beyond the scope of the impact on their family (in other words,
can witnesses testify about the victim’s contributions to work, the community, and
to larger society?); (3) whether victim-impact information must have a nexus to the
crime; (4) how much emotion a witness may show during their testimony; (5) how
the government may use photographs or slideshows as victim-impact information;
(6) whether the government may present cumulative victim-impact information;
and (7) whether a victim-impact witness’s planned testimony should be reviewed
by the Court and the defense prior to the witness testifying.
15 Docket 760 at 10; Docket 802 at 18. The phrases are: “My name is Crystal Star Randi
Denardi. I did not disappear. I was present for all of it” and “One week before I was murdered
by John Pearl Smith.”
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IV. Whether victim-impact information is limited to a victim’s family
members and the impact on the family
In United States v. Mikhel, the Ninth Circuit addressed whether victim-impact
information properly includes information concerning a victim’s “professional
accomplishments or value to the wider community.”16 The Ninth Circuit held that
neither the Eighth Amendment nor the FDPA limit victim-impact information to “the
relationship the victim had with his or her family.”17 As to the Eighth Amendment,
the Ninth Circuit reasoned that the Supreme Court in Payne v. Tennessee had
found that the government has a “legitimate interest in . . . reminding the sentencer
that . . . the victim is an individual whose death represents a unique loss to society
and in particular to his family.”18 The Ninth Circuit observed that the Supreme
Court has never “limited victim-impact evidence to evidence by or about family
members.”19 As to the FDPA, the Ninth Circuit reasoned that the FDPA’s use of
the language “the victim’s family” is “illustrative, not exhaustive” and “does not
prohibit evidence of a victim’s professional accomplishments or value to the
community.”20 This Court is bound by Mikhel and Payne and accordingly will not
16 889 F.3d 1003, 1052 (9th Cir. 2018).
17 Id. at 1052–53.
18 Id. (quoting Payne, 501 U.S. at 825) (omissions and emphasis in Mikhel).
19 Id. at 1052.
20 Id. at 1053.
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limit victim-impact witnesses to only members of the victims’ families and will not
limit victim-impact information to only the impact on the victims’ families.
However, the Court will require the government to show that each victim-
impact witness had a close personal relationship with Ms. Denardi or Mr. Gross at
the time of their death. Childhood friends and distant relatives will not be permitted
to testify as victim-impact witnesses. Nor will witnesses be permitted to testify
about the impact that Ms. Denardi’s or Mr. Gross’s death has had on other
individuals, such as the victims’ parents.21
V. Whether the victim-impact information must have a nexus to the crime
Victim-impact information must be relevant to the sentencing decision22 and
it must be “evidence of the specific harm caused by the defendant.”23 Thus,
information that is wholly separate from the crime(s) of conviction is likely irrelevant
and will not be permitted. The Court is also not inclined to find relevant (1)
speculative victim-impact testimony24; (2) testimony as to the impact caused by the
trial process25; or (3) statements by a witness addressed directly to Mr. Smith or
21 See, e.g., Docket 690 at 51 as an example of impermissible testimony (“there will always be a
sorrowful note in our hearts knowing her parents are grieving every day that beautiful young
lady is gone”).
22 18 U.S.C. § 3593(a).
23 Payne, 501 U.S. at 825.
24 Cf. Docket 918 at 27–28 (under seal) (precluding proposed testimony that required
speculation into Mr. Smith’s future actions).
25 United States v. McVeigh, 944 F. Supp. 1478, 1491 (D. Colo. 1996) (“[B]ecause victim impact
evidence is relevant only to demonstrate the specific harm caused by a particular crime, it
seems clear that the victims’ testimony must reflect the harm caused by the criminal conduct,
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his defense team.26 Victim-impact testimony should focus on each victim’s
“uniqueness as an individual human being” and “the specific harm caused by the
crime in question.”27
VI. Emotional witnesses
“Victim impact testimony cannot be totally divorced from emotion,” and thus,
the “presentation of victim impact evidence can be problematic because of the
potential for emotional outbursts during the testimony of family members.” 28 The
Court expects that victim-impact witnesses will find testifying about the loss of their
family member or close friend to be a difficult experience that “may generate
powerful emotions.”29 The Court intends to give reasonable leeway to victim-
impact witnesses because “[i]t cannot be expected that victim impact testimony will
be cool and dispassionate.”30 However, there is a difference between the
substance of victim-impact testimony being poignant and having an emotional
impact and an overly emotional witness whose presentation may become unduly
inflammatory. “If a witness becomes overly emotional, the Court will recess the
rather than the impact of the trial proceedings.”) (internal citations omitted).
26 See United States v. Bernard, 299 F.3d 467, 480 (5th Cir. 2002).
27 Payne, 501 U.S. at 823–25.
28 United States v. O’Driscoll, 203 F. Supp. 2d 334, 340 (M.D. Penn. 2002).
29 United States v. Milburn, Case No. CR 05-00167 WHA, 2008 WL 2557975, at *3 (N.D. Cal.
June 24, 2008).
30 United States v. Whitten, 610 F.3d 168, 190–91 (2d Cir. 2010).
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proceedings in order to allow the witness to regain composure. If requested, the
Court may instruct the jury to disregard any inappropriate comments.”31 The
government shall instruct its victim-impact witnesses accordingly.
VII. How the government may use photographs or slideshows as victim-
impact information
The government has included in its Informational Outlines two sets of
photographs of the victims, one that contains 62 photographs of Mr. Gross and
one that contains 110 photographs of Ms. Denardi.32 The Court does not intend
to allow the government to present dozens of photographs of each victim or any
video or slideshow set to music. But the government may select a reasonable
number of appropriate photographs of each victim, consisting primarily of
photographs of the victim as an adult close in age to the age they were when they
were killed. The Court may allow one photograph of each victim as a child.33 Once
these photographs are identified to the defense, the defense may raise challenges
at that time.34
31 United States v. Lujan, Case No. CR 05-924 RB, 2010 WL 11546103, at *5 (D. N.M. Nov. 30,
2010).
32 Docket 690-1, 690-2 (under seal) (photographs of Ben Gross); Docket 627-2, 627-3, 627-4
(under seal) (photographs of Crystal Denardi).
33 See Sampson, 335 F. Supp. 2d at 192 (quoting Salazar v. State, 90 S.W.3d 330 (Tex. Crim.
App. 2002) (“‘[The] prejudicial effect [of the videotape was] enormous because the implicit
suggestion is that appellant murdered this angelic infant; he killed this laughing, light-hearted
child; he snuffed out the life of a first-grade soccer player and of the young boy hugging his
blond puppy dog. The danger of unconsciously misleading the jury [was] high.’”) (alterations in
Sampson). See also People v. Dykes, 209 P.3d 1, 47–48 (Cal. 2009) (discussing appropriate
victim-impact video).
34 The deadline for the parties to file their penalty phase witness and exhibit lists is one business
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VIII. Whether the government may present cumulative victim-impact
information
The FDPA provides that during the penalty phase, “information may be
excluded if its probative value is outweighed by the danger of creating unfair
prejudice, confusing the issues, or misleading the jury.”35 As this Court has
previously noted, the FDPA’s admissibility standard differs from the standard set
forth in Federal Rule of Evidence 403. As relevant here, the FDPA—unlike Rule
403—does not expressly provide that information can be excluded if its probative
value is outweighed by a danger of “needlessly presenting cumulative evidence.”36
However, even though the FDPA does not expressly allow a trial court to consider
cumulativeness, it is a “bedrock” principle that “the trial court, in a capital
sentencing proceeding, remains free to consider cumulativeness in assessing
evidentiary proffers.”37
The government cites to United States v. Dylann Roof and United States v.
Timothy McVeigh and notes that in those trials, 20 and 38 victim-impact witnesses
testified, respectively.38 However, those cases were fundamentally different than
most FDPA cases due to the “sheer number of actual victims and the horrific things
day after the jury returns its guilt-phase verdict, in the event it convicts Mr. Smith of at least one
capital-eligible crime. Docket 935 at 5.
35 18 U.S.C. § 3593(c).
36 Compare Fed. R. Evid. 403 with 18 U.S.C. § 3593(c).
37 United States v. Sampson, 486 F.3d 13, 43 (1st Cir. 2007).
38 Docket 802 at 4, 12–13.
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done to them necessarily allow[ed] for the introduction of a greater amount of victim
impact testimony in order for the government to show the ‘harm’ caused by the
crime.”39 This Court agrees that because those cases differ greatly from the facts
of the instant case, their rulings regarding allowable victim-impact information
“should be read with caution.”40 Similarly, Mr. Smith cites to United States v.
Williams—where only one victim-impact witness testified—but that case also
differs from the instant case.41 A better comparison may be United States v.
Barnette, an FDPA case with two victims in which a total of seven victim-impact
witnesses testified.42 However, the Court will not at this time set a limit on how
many victim-impact witnesses the government may call.43
The government maintains that victim-impact testimony can never be
cumulative because each victim has suffered his or her own loss.44 However, the
purpose of victim-impact information is to give the sentencing jury “a quick glimpse
39 United States v. McVeigh, 153 F.3d 1166, 1221 (10th Cir. 1998).
40 Lujan, 2010 WL 11546103, at *4.
41 Docket 760 at 12 (citing Case No. 06-00079 (D. Haw.).
42 211 F.3d 803, 818 (4th Cir. 2000). See also Sampson, 335 F. Supp. 2d at 188–89 (surveying
the number of victim-impact witnesses in various FDPA trials).
43 See United States v. McCluskey, Case No. 10-2734 JCH, 2013 WL 12330210, at *5 (D. N.M.
June 11, 2013) (“The Court concludes that the proper focus is not on the number of victim
impact witnesses per se, but instead on the quantity and quality of victim impact testimony; the
issue is whether the evidence becomes so lengthy and cumulative that it confuses the issues or
causes unfair prejudice. For these reasons, the Court will not now set a limit on the number of
victim impact witnesses; the Court will instead evaluate the issue in context, once the Court has
more information about all of the penalty-phase evidence.”) (internal citation omitted).
44 Docket 802 at 19.
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of the life which [the] defendant chose to extinguish” and to “demonstrat[e] the loss
to the victim’s family and to society,”45 not to present an exhaustive list of people
who were affected by the victims’ deaths. Neither party has addressed the
relationship between the FDPA’s victim-impact provision and the Crime Victims’
Right Act (CVRA).46 The CVRA provides that a crime victim—defined as “a person
directly and proximately harmed as a result of the commission of a Federal
offense”—has the right to be “reasonably heard” at a sentencing proceeding.47
However, the CVRA also authorizes the district court to “fashion a reasonable
procedure to give effect to this chapter that does not unduly complicate or prolong
the proceedings” if the court finds that “the number of crime victims makes it
impracticable to accord all of the crime victims the rights described.”48
When challenges to specific witnesses are ripe, the Court will give due
consideration as to whether the proposed testimony would be so cumulative that
it would violate Due Process or the FDPA and will consider the rights accorded
victims pursuant to the CVRA.
45 Payne, 501 U.S. at 822 (internal quotations omitted).
46 18 U.S.C. § 3771. Cf. 18 U.S.C. § 3510(b), (c) (permitting “victims” to attend trial in a capital
case and defining “victims” by reference to the Victims’ Rights and Restitution Act of 1990);
United States v. Lawrence, 735 F.3d 385, 439–40 (6th Cir. 2013) (applying the CVRA to a FDPA
case).
47 18 U.S.C. § 3771(a)(4), (e)(2)(A).
48 18 U.S.C. § 3771(d)(2).
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IX. Whether victim-impact witnesses’ planned testimony should be
reviewed by the Court and defense prior to the witness testifying
The Court does not find it necessary to have the government submit its
victim-impact witnesses’ testimony in writing to the Court and the defense prior to
the witness testifying, just as it does not intend to require the defense to submit its
mitigation witnesses’ testimony in advance.49 However, near the time the guilt
phase of trial begins, the government should be prepared to provide an updated
Informational Outline regarding its expected victim-impact information that
describes each witness’s relationship to Mr. Gross or Ms. Denardi and outlines the
information it anticipates each witness will present.50 The government is also
expected to adequately inform its witnesses as to the guidelines set forth in this
order. If the Court determines that victim-impact witnesses are straying from these
guidelines, it may alter this ruling to require advanced submission of proposed
testimony to the Court.
In light of the foregoing, the motion at Docket 760 is GRANTED IN PART
and DENIED IN PART as outlined above.
DATED this 5th day of November, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
49 The Court is requiring that Mr. Smith’s unsworn allocution be presented to the Court in writing
in advance of his allocution to the jury. Docket 932 at 10.
50 See Sampson, 335 F. Supp. 2d at 188.
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